82 FR 45187 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Clean Air Interstate Rule (CAIR) Trading Programs
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 187 (September 28, 2017)
Federal Register Volume 82, Issue 187 (September 28, 2017)
| Page Range | 45187-45191 | |
| FR Document | 2017-20724 |
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)] [Rules and Regulations] [Pages 45187-45191] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-20724] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0215; FRL-9968-34-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Removal of Clean Air Interstate Rule (CAIR) Trading Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking direct final action to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. The submitted revision requests EPA remove from the Virginia SIP regulations from the Virginia Administrative Code that established EPA-administered trading programs under the Clean Air Interstate Rule (CAIR), one of which also included requirements to address nitrogen oxide (NOX ) reductions required under the NOX SIP Call. The EPA-administered trading programs under CAIR were discontinued on December 31, 2014 upon the implementation of the Cross-State Air Pollution Rule (CSAPR), which was promulgated by EPA to replace CAIR. CSAPR established federal implementation plans (FIPs) for 23 states, including Virginia. The SIP submittal seeks removal from the Virginia SIP of Virginia regulations that implemented the CAIR annual NOX , ozone season NOX , and sulfur dioxide (SO2 ) trading programs (as CSAPR has replaced CAIR). EPA is approving the SIP revision in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on November 27, 2017 without further notice, unless EPA receives adverse written comment by October 30, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03- OAR-2017-0215 at https://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be [[Page 45188]] confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814-2043, or by email at [email protected]. SUPPLEMENTARY INFORMATION: On January 5, 2017, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted a SIP revision (Revision D16) that requests removal from its SIP of Virginia Administrative Code regulations including 9 VAC 5 Chapter 140: Part II--NOX Annual Trading Program; Part III--NOX Ozone Season Trading Program; and Part IV-- SO2 Annual Trading Program (Sections 5-140-1010 through 5- 140-3880). I. Background EPA promulgated CAIR (70 FR 25162, May 12, 2005) to address transported emissions that significantly contributed to downwind states' nonattainment and maintenance of the 1997 ozone and fine particulate matter (PM2.5 ) national ambient air quality standards (NAAQS). CAIR required 28 states, including Virginia, to reduce emissions of NOX and SO2 , precursors to the formation of ambient ozone and PM2.5 . Under CAIR, EPA established federal implementation plans (FIPs) comprised of separate cap and trade programs for annual NOX , ozone season NOX , and annual SO2 . States could comply with the requirements of CAIR by remaining on the FIP, which applied only to electric generating units (EGUs), or by submitting a CAIR SIP revision that included as trading sources EGUs and certain non-EGUs \1\ that formerly traded in the NOX Budget Trading Program under the NOX SIP Call.\2\ On December 28, 2007 (72 FR 73602), EPA approved a SIP revision submitted by Virginia that allowed the Commonwealth to participate in the EPA-administered CAIR regional cap and trade programs for NOX annual, NOX ozone season, and SO2 annual emissions. Virginia's NOX ozone season trading program under CAIR included non-EGUs that were previously trading in the NOX budget trading program under the NOX SIP Call, which satisfied Virginia's obligations under the NOX SIP Call. --------------------------------------------------------------------------- \1\ These non-EGUs are defined in the NOX SIP Call as stationary, fossil fuel-fired boilers, combustion turbines, or combined cycle systems with a maximum design heat input greater than 250 million British thermal units per hour (MMBtu/hr). \2\ In October 1998, EPA finalized the ``Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone''--commonly called the NOX SIP Call. See 63 FR 57356 (October 27, 1998). --------------------------------------------------------------------------- After EPA promulgated CAIR, litigation ensued. The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008,\3\ but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR.\4\ The ruling allowed CAIR to remain in effect temporarily until a replacement rule consistent with the D.C. Circuit's opinion was developed. While EPA worked on developing a replacement rule, the CAIR program continued as planned with the NOX annual and ozone season programs beginning in 2009 and the SO2 annual program beginning in 2010. --------------------------------------------------------------------------- \3\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). \4\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008). --------------------------------------------------------------------------- On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. The rule also contained provisions that would sunset CAIR-related obligations on a schedule coordinated with the implementation of CSAPR compliance requirements. CSAPR was to become effective January 1, 2012; however, the timing of CSAPR's implementation was impacted by a number of court actions. Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior to its implementation and ordered EPA to continue administering CAIR on an interim basis.\5\ On August 21, 2012, the D.C. Circuit issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the Supreme Court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects. --------------------------------------------------------------------------- \5\ Order of Dec. 30, 2011, in EME Homer City Generation, L.P. v. EPA, D.C. Cir. No. 11-1302. --------------------------------------------------------------------------- Throughout the initial round of D.C. Circuit proceedings and the ensuing Supreme Court proceedings, the stay on CSAPR remained in place, and EPA continued to implement CAIR. Following the April 2014 Supreme Court decision, EPA filed a motion asking the D.C. Circuit to lift the stay in order to allow CSAPR to replace CAIR in an equitable and orderly manner while further D.C. Circuit proceedings were held to resolve remaining claims from petitioners. Additionally, EPA's motion requested to toll, by three years, all CSAPR compliance deadlines that had not passed as of the approval date of the stay. On October 23, 2014, the D.C. Circuit granted EPA's request,\6\ and on December 3, 2014 (79 FR 71663), in an interim final rule, EPA set the updated effective date of CSAPR as January 1, 2015 and tolled the implementation of CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In accordance with the interim final rule, the sunset date for CAIR was December 31, 2014, and EPA began implementing CSAPR on January 1, 2015. --------------------------------------------------------------------------- \6\ Order Document #1518738, EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Issued Oct. 23, 2014). --------------------------------------------------------------------------- Starting in January 2015, the CSAPR FIP trading programs for annual NOX , ozone season NOX , and annual SO2 were applicable in Virginia. Thus, since January 1, 2015, Virginia regulations implementing the CAIR annual trading programs, including the NOX ozone season trading program addressing Virginia's obligations under the NOX SIP Call, have been obsolete and moot and none of these programs contribute to emission reductions in Virginia. On October 26, 2016 (81 FR 74504), EPA finalized the CSAPR Update Rule to address interstate transport of ozone pollution with respect to the 2008 ozone NAAQS, and issued FIPs that updated the ozone season NOX budgets for 22 states, including Virginia. Starting in January 2017, the CSAPR Update budgets were implemented via modifications to the CSAPR NOX ozone season allowance trading program that was established under the original CSAPR. [[Page 45189]] II. Summary of SIP Revision and EPA Analysis VADEQ submitted a SIP revision on January 5, 2017 requesting the removal of regulations from the Virginia SIP under 9 VAC 5 Chapter 140: Part II--NOX Annual Trading Program, Part III-- NOX Ozone Season Trading Program, and Part IV-- SO2 Annual Trading Program (Sections 5-140-1010 through 5- 140-3880), which implemented the CAIR annual NOX , ozone season NOX , and annual SO2 trading programs. These regulations have been moot since January 1, 2015, when CSAPR replaced CAIR, and have been repealed in their entirety from the Virginia Administrative Code. The amendments removing these regulations were adopted by the State Air Pollution Control Board on September 9, 2016 and were effective as of November 16, 2016. As noted previously, on January 1, 2015, the CAIR annual NOX , ozone season NOX , and annual SO2 trading programs were replaced by the trading programs under the CSAPR FIP. Therefore, regulations in the Virginia SIP that implemented the CAIR annual trading programs have been obsolete and moot since January 1, 2015. None of the provisions in 9 VAC 5 Chapter 140 which Virginia seeks to remove from the SIP presently reduce NOX or SO2 emissions from EGUs or certain non-EGUs after December 31, 2014 as CAIR was replaced by CSAPR. These obsolete regulations include provisions under 9 VAC 5 Chapter 140: Part III--NOX Ozone Season Trading Program Article 1-- CAIR NOX Ozone Season Trading Program General Provisions and Article 5--CAIR NOX Ozone Season Allowance Allocations, which addressed Virginia's obligations under the NOX SIP Call by including EGUs and certain large non-EGUs that had formerly traded under the NOX SIP Call trading program as CAIR trading sources. Unlike the CAIR trading program, CSAPR's trading program for ozone season NOX as promulgated in 2011 does not provide for non-EGUs to participate in trading. Therefore, since January 1, 2015, when CSAPR replaced CAIR and the CSAPR FIP became effective in Virginia, the Virginia SIP has not contained an effective regulation addressing Virginia's obligation under the NOX SIP Call to reduce NOX emissions from non-EGUs such as stationary, fossil fuel-fired boilers, combustion turbines, or combined cycle systems with a maximum design heat input greater than 250 MMBtu/ hr. The absence of an effective regulation in the Virginia SIP to reduce NOX emissions from these non-EGUs that formerly participated in the CAIR trading program resulted from the sunset of CAIR and EPA's implementation of CSAPR starting January 1, 2015. Because CSAPR did not provide for trading by non-EGUs, Virginia's SIP no longer meets the Virginia NOX SIP Call obligation with respect to these non-EGUs that formerly traded in CAIR. However, Virginia's request in its January 5, 2017 SIP seeking removal from its SIP of 9 VAC 5 Chapter 140: Part III--NOX Ozone Season Trading Program and EPA's action to approve the January 5, 2017 submittal did not create this gap in coverage under the Virginia SIP. According to Virginia, the Commonwealth is in the process of drafting a regulation to address the Commonwealth's obligations under the NOX SIP Call (including its obligation to address these non- EGUs which formerly traded in CAIR). In remedying its provisions to address the NOX SIP Call, Virginia must satisfy the requirements of 40 CFR 51.121(f) which lists requirements such as control measures to be included in SIP revisions to meet NOX budgets assigned under the NOX SIP Call. EPA expects Virginia will submit such provisions to EPA to be included in Virginia's SIP, and EPA will review and act on any such SIP submittal from Virginia addressing the Commonwealth's NOX SIP Call obligations in a separate rulemaking. Since the regulations implementing the CAIR annual NOX , ozone season NOX , and annual SO2 trading programs have been moot and non-operational since CAIR was replaced by CSAPR on January 1, 2015, removing these regulations from the Virginia SIP will not interfere with reduction of NOX or SO2 emissions in Virginia and will not interfere with Virginia's attainment of any NAAQS, reasonable further progress, or any other applicable CAA requirement. In addition, as Virginia's SIP has not effectively addressed non-EGUs that formerly traded in CAIR for NOX SIP Call obligations since CAIR sunset, removing 9 VAC 5 Chapter 140: Part III--NOX Ozone Season Trading Program from the Virginia SIP will also not interfere with attainment of NAAQS, reasonable further progress, or any CAA requirement as the CAIR's sunset removed the non- EGUs from the ozone season NOX trading program. Thus, EPA finds the January 5, 2017 SIP revision approvable in accordance with section 110 of the CAA, including specifically with section 110(l) of the CAA. III. Final Action EPA is approving the January 5, 2017 SIP revision submission from the Commonwealth of Virginia, which sought removal from the Virginia SIP of moot regulations under 9 VAC 5 Chapter 140 that implemented the CAIR annual NOX , ozone season NOX , and annual SO2 trading programs at Part II--NOX Annual Trading Program; Part III--NOX Ozone Season Trading Program; and Part IV--SO2 Annual Trading Program (Sections 5-140-1010 through 5-140-3880). EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the ``Proposed Rules'' section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on November 27, 2017 without further notice unless EPA receives adverse comment by October 30, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) ``privilege'' for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1- 1198, provides a privilege that protects from disclosure documents and information about the [[Page 45190]] content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information ``required by law,'' including documents and information ``required by federal law to maintain program delegation, authorization or approval,'' since Virginia must ``enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts . . . .'' The opinion concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ``[t]o the extent consistent with requirements imposed by federal law,'' any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since ``no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.'' Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action removing from the Virginia SIP regulations under Sections 5-140-1010 through 5-140-3880 of 9 VAC 5 Chapter 140 that implemented the CAIR annual NO X , ozone season NOX , and annual SO2 trading programs may not be challenged later in [[Page 45191]] proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: September 8, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart VV--Virginia Sec. 52.2420 [Amended] 0 2. In Sec. 52.2420, the table in paragraph (c) is amended by: 0 a. Removing the section entitled ``Part II NOX Annual Trading Program'', including ``Article 1'' through ``Article 9'' including entries ``5-140-1010'' through ``5-140-1880''; 0 b. Removing the section entitled ``Part III NOX Ozone Season Trading Program'', including ``Article 1'' through ``Article 9'' including entries ``5-140-2010'' through ``5-140-2880''; and; 0 c. Removing the section entitled ``Part IV SO2 Annual Trading Program'', including ``Article 1'' through ``Article 9'' including entries ``5-140-3010'' through ``5-140-3880''. [FR Doc. 2017-20724 Filed 9-27-17; 8:45 am] BILLING CODE 6560-50-P
![45190 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Rules and Regulations
content of those documents that are the or 213, to enforce the requirements or The SIP is not approved to apply on
product of a voluntary environmental prohibitions of the state plan, any Indian reservation land as defined
assessment. The Privilege Law does not independently of any state enforcement in 18 U.S.C. 1151 or in any other area
extend to documents or information effort. In addition, citizen enforcement where EPA or an Indian tribe has
that: (1) Are generated or developed under section 304 of the CAA is demonstrated that a tribe has
before the commencement of a likewise unaffected by this, or any, state jurisdiction. In those areas of Indian
voluntary environmental assessment; (2) audit privilege or immunity law. country, the rule does not have tribal
are prepared independently of the implications and will not impose
V. Statutory and Executive Order
assessment process; (3) demonstrate a substantial direct costs on tribal
Reviews
clear, imminent and substantial danger governments or preempt tribal law as
to the public health or environment; or A. General Requirements specified by Executive Order 13175 (65
(4) are required by law. Under the CAA, the Administrator is FR 67249, November 9, 2000).
On January 12, 1998, the required to approve a SIP submission
Commonwealth of Virginia Office of the B. Submission to Congress and the
that complies with the provisions of the Comptroller General
Attorney General provided a legal CAA and applicable federal regulations.
opinion that states that the Privilege 42 U.S.C. 7410(k); 40 CFR 52.02(a). The Congressional Review Act, 5
Law, Va. Code § 10.1–1198, precludes Thus, in reviewing SIP submissions, U.S.C. 801 et seq., as added by the Small
granting a privilege to documents and EPA’s role is to approve state choices, Business Regulatory Enforcement
information ‘‘required by law,’’ provided that they meet the criteria of Fairness Act of 1996, generally provides
including documents and information the CAA. Accordingly, this action that before a rule may take effect, the
‘‘required by federal law to maintain merely approves state law as meeting agency promulgating the rule must
program delegation, authorization or federal requirements and does not submit a rule report, which includes a
approval,’’ since Virginia must ‘‘enforce impose additional requirements beyond copy of the rule, to each House of the
federally authorized environmental those imposed by state law. For that Congress and to the Comptroller General
programs in a manner that is no less reason, this action: of the United States. EPA will submit a
stringent than their federal counterparts • Is not a ‘‘significant regulatory report containing this action and other
. . . .’’ The opinion concludes that action’’ subject to review by the Office required information to the U.S. Senate,
‘‘[r]egarding § 10.1–1198, therefore, of Management and Budget under the U.S. House of Representatives, and
documents or other information needed Executive Orders 12866 (58 FR 51735, the Comptroller General of the United
for civil or criminal enforcement under October 4, 1993) and 13563 (76 FR 3821, States prior to publication of the rule in
one of these programs could not be January 21, 2011); the Federal Register. A major rule
privileged because such documents and • does not impose an information cannot take effect until 60 days after it
information are essential to pursuing collection burden under the provisions is published in the Federal Register.
enforcement in a manner required by of the Paperwork Reduction Act (44 This action is not a ‘‘major rule’’ as
federal law to maintain program U.S.C. 3501 et seq.); defined by 5 U.S.C. 804(2).
delegation, authorization or approval.’’ • is certified as not having a
Virginia’s Immunity law, Va. Code Sec. significant economic impact on a C. Petitions for Judicial Review
10.1–1199, provides that ‘‘[t]o the extent substantial number of small entities Under section 307(b)(1) of the CAA,
consistent with requirements imposed under the Regulatory Flexibility Act (5 petitions for judicial review of this
by federal law,’’ any person making a U.S.C. 601 et seq.); action must be filed in the United States
voluntary disclosure of information to a • does not contain any unfunded Court of Appeals for the appropriate
state agency regarding a violation of an mandate or significantly or uniquely
environmental statute, regulation, circuit by November 27, 2017. Filing a
affect small governments, as described petition for reconsideration by the
permit, or administrative order is in the Unfunded Mandates Reform Act
granted immunity from administrative Administrator of this final rule does not
of 1995 (Pub. L. 104–4);
affect the finality of this action for the
or civil penalty. The Attorney General’s • does not have federalism
January 12, 1998 opinion states that the purposes of judicial review nor does it
implications as specified in Executive
quoted language renders this statute extend the time within which a petition
Order 13132 (64 FR 43255, August 10,
inapplicable to enforcement of any for judicial review may be filed, and
1999);
federally authorized programs, since • is not an economically significant shall not postpone the effectiveness of
‘‘no immunity could be afforded from regulatory action based on health or such rule or action. Parties with
administrative, civil, or criminal safety risks subject to Executive Order objections to this direct final rule are
penalties because granting such 13045 (62 FR 19885, April 23, 1997); encouraged to file a comment in
immunity would not be consistent with • is not a significant regulatory action response to the parallel notice of
federal law, which is one of the criteria subject to Executive Order 13211 (66 FR proposed rulemaking for this action
for immunity.’’ 28355, May 22, 2001); published in the proposed rules section
Therefore, EPA has determined that • is not subject to requirements of of today’s Federal Register, rather than
Virginia’s Privilege and Immunity Section 12(d) of the National file an immediate petition for judicial
statutes will not preclude the Technology Transfer and Advancement review of this direct final rule, so that
Commonwealth from enforcing its Act of 1995 (15 U.S.C. 272 note) because EPA can withdraw this direct final rule
program consistent with the federal application of those requirements would and address the comment in the
requirements. In any event, because be inconsistent with the CAA; and proposed rulemaking action.
jstallworth on DSKBBY8HB2PROD with RULES
EPA has also determined that a state • does not provide EPA with the This action removing from the
audit privilege and immunity law can discretionary authority to address, as Virginia SIP regulations under Sections
affect only state enforcement and cannot appropriate, disproportionate human 5–140–1010 through 5–140–3880 of 9
have any impact on federal enforcement health or environmental effects, using VAC 5 Chapter 140 that implemented
authorities, EPA may at any time invoke practicable and legally permissible the CAIR annual NOX, ozone season
its authority under the CAA, including, methods, under Executive Order 12898 NOX, and annual SO2 trading programs
for example, sections 113, 167, 205, 211 (59 FR 7629, February 16, 1994). may not be challenged later in
VerDate Sep<11>2014 14:07 Sep 27, 2017 Jkt 241001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1](https://thefederalregister.org/doc/82_FR_45374/page/4.svg)
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proceedings to enforce its requirements. SIP revision concerns the establishment California, we classified six ozone
(See section 307(b)(2).) of a Photochemical Assessment nonattainment areas as Serious, Severe,
Monitoring System (PAMS) network in or Extreme: Los Angeles-South Coast
List of Subjects in 40 CFR Part 52
six ozone nonattainment areas within Air Basin (‘‘South Coast’’), Sacramento
Environmental protection, Air California. The EPA is taking this action Metro, San Diego County, San Joaquin
pollution control, Incorporation by under the Clean Air Act based on the Valley, Southeast Desert Modified Air
reference, Intergovernmental relations, conclusion that all applicable statutory Quality Management Area (‘‘Southeast
Nitrogen dioxide, Ozone, Particulate and regulatory requirements related to Desert’’) and Ventura County.2 Such
matter, Reporting and recordkeeping PAMS SIP revisions have been met. areas were subject to many
requirements, Sulfur oxides, Volatile DATES: This rule is effective October 30, requirements, including those related to
organic compounds. 2017. enhanced monitoring in CAA section
Dated: September 8, 2017. ADDRESSES: The EPA has established a 182(c)(1).
docket for this action under Docket No. CAA section 182(c)(1) of the CAA
Cecil Rodrigues,
EPA–R09–OAR–2017–0411. All required the EPA to promulgate rules for
Acting Regional Administrator, Region III. enhanced monitoring of ozone, oxides
documents in the docket are listed on
40 CFR part 52 is amended as follows: the http://www.regulations.gov Web of nitrogen, and volatile organic
site. Although listed on the Web site, compounds to obtain more
PART 52—APPROVAL AND comprehensive and representative data
some information is not publicly
PROMULGATION OF on ozone air pollution in areas
available, e.g., Confidential Business
IMPLEMENTATION PLANS designated nonattainment and classified
Information (CBI) or other information
whose disclosure is restricted by statute. as Serious, Severe or Extreme. The
■ 1. The authority citation for part 52 EPA’s final PAMS regulation was
continues to read as follows: Certain other material, such as
copyrighted material, is not placed on promulgated on February 12, 1993 (58
Authority: 42 U.S.C. 7401 et seq. the Internet and will be publicly FR 8452). Section 182(c)(1) also
available only in hard copy form. required states to submit SIP revisions
Subpart VV—Virginia providing for enhanced monitoring for
Publicly available docket materials are
§ 52.2420 [Amended] available through http:// such areas consistent with the PAMS
www.regulations.gov, or please contact regulation.
■ 2. In § 52.2420, the table in paragraph On November 10, 1993, the California
the person identified in the FOR FURTHER
(c) is amended by: Air Resources Board (CARB) submitted
INFORMATION CONTACT section for
■ a. Removing the section entitled ‘‘Part to the EPA a SIP revision for PAMS
additional availability information.
II NOX Annual Trading Program’’, networks in California (‘‘California
FOR FURTHER INFORMATION CONTACT:
including ‘‘Article 1’’ through ‘‘Article PAMS SIP revision’’). The California
9’’ including entries ‘‘5–140–1010’’ Doris Lo, EPA Region IX, (415) 972– PAMS SIP revision consists of PAMS
through ‘‘5–140–1880’’; 3959, lo.doris@epa.gov. commitments from five California air
■ b. Removing the section entitled ‘‘Part SUPPLEMENTARY INFORMATION: districts with jurisdiction within the six
III NOX Ozone Season Trading Throughout this document, ‘‘we,’’ ‘‘us,’’ relevant ozone nonattainment areas: The
Program’’, including ‘‘Article 1’’ through and ‘‘our’’ refer to the EPA. South Coast Air Quality Management
‘‘Article 9’’ including entries ‘‘5–140– Table of Contents District (AQMD) (for South Coast and
2010’’ through ‘‘5–140–2880’’; and; Southeast Desert areas); Sacramento
I. Proposed Action Metro AQMD (for the Sacramento Metro
■ c. Removing the section entitled ‘‘Part
II. Public Comments
IV SO2 Annual Trading Program’’, III. Final Action
area); San Diego County Air Pollution
including ‘‘Article 1’’ through ‘‘Article IV. Statutory and Executive Order Reviews Control District (APCD) (for the San
9’’ including entries ‘‘5–140–3010’’ Diego County area); San Joaquin Valley
through ‘‘5–140–3880’’. I. Proposed Action Unified APCD (for the San Joaquin
[FR Doc. 2017–20724 Filed 9–27–17; 8:45 am] On August 2, 2017 (82 FR 35922), we Valley area), and Ventura County APCD
BILLING CODE 6560–50–P proposed to approve a SIP revision (for the Ventura County area), as well as
submitted by the State of California on CARB Executive Orders approving the
November 10, 1993. Herein, we refer to commitments, and public process
ENVIRONMENTAL PROTECTION our proposed action on August 2, 2017, documentation. The California PAMS
AGENCY as the ‘‘proposed rule.’’ SIP revision is intended to meet the
In our proposed rule, we provided a requirements of section 182(c)(1) of the
40 CFR Part 52 discussion of the regulatory context Act and to comply with the PAMS
leading to the SIP revision submitted by regulation, codified at 40 CFR part 58,
[EPA–R09–OAR–2017–0411; FRL–9968–38– as promulgated on February 12, 1993.
Region 9]
California on November 10, 1993. In
short, the Clean Air Act (CAA or ‘‘Act’’), In our proposed rule, we identified
Approval and Promulgation of as amended in 1990, required the EPA the criteria we used to review the
Implementation Plans; Enhanced to designate as nonattainment, and to California PAMS SIP revision submittal
Monitoring; California classify as Marginal, Moderate, Serious, and provided our evaluation and
Severe or Extreme, any ozone areas that rationale for proposed approval. We
AGENCY: Environmental Protection were still designated nonattainment determined that California’s PAMS SIP
Agency (EPA). under the 1977 Act Amendments, and revision meets all applicable
jstallworth on DSKBBY8HB2PROD with RULES
ACTION: Final rule. any other areas violating the 1-hour requirements: (1) By first committing to,
ozone standard, generally based on air and then by implementing, PAMS
SUMMARY: The Environmental Protection quality monitoring data from the 1987 networks as required in 40 CFR part 58;
Agency (EPA) is taking final action to through 1989 period.1 Within and (2) by providing the public with an
approve a State Implementation Plan opportunity to inspect the proposed
(SIP) revision submitted by the State of 1 See section 107(d)(4) of the Act. See also 56 FR
California on November 10, 1993. This 56694, November 6, 1991. 2 See 56 FR 56694, November 6, 1991.
VerDate Sep<11>2014 14:07 Sep 27, 2017 Jkt 241001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\28SER1.SGM 28SER1](https://thefederalregister.org/doc/82_FR_45374/page/5.svg)
Document Created: 2017-09-28 01:33:08
Document Modified: 2017-09-28 01:33:08
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Direct final rule. | |
| Dates | This rule is effective on November 27, 2017 without further notice, unless EPA receives adverse written comment by October 30, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. | |
| Contact | Sara Calcinore, (215) 814-2043, or by email at [email protected] | |
| FR Citation | 82 FR 45187 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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